WHAT IF IT WAS AN ILLEGAL SEARCH? | THE EXCLUSIONARY RULE

“…if you get stopped by a cop in Amsterdam, it’s illegal for them to search you. I mean, that’s a right the cops in Amsterdam don’t have.” Vincent Vega, Pulp Fiction.

While I do not know if Mr. Vega’s comment about the rights of law enforcement in Amsterdam is accurate, it raises the question: What happens if law enforcement conducts an illegal search and finds illegal substances?

The answer may surprise you.

When law enforcement conducts an illegal search, one of the more powerful tools the defendant in a criminal case has in his arsenal comes into play. This tool is called the exclusionary rule.

Essentially, the exclusionary rule says that if law enforcement obtained either physical evidence from a defendant, or a statement from a defendant, in violation of the defendant’s rights, the evidence or statement can be excluded from the evidence presented against the defendant at trial.

A recent United States Supreme Court case, Rodriguez v. United States, 135 S. Ct. 1609 (2015), eliminated one blockade to the Defendant’s use of the exclusionary rule. The blockade, often utilized by law enforcement in the context of a traffic stop, was known as the de minimus exception to the Fourth Amendment. How will Rodriguez fit into the juris prudence of a traffic stop?

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures by law enforcement. Generally, law enforcement must have at least reasonable suspicion that a person is involved in criminal activity before detaining the person. Reasonable suspicion entails a level of suspicion based on articulable facts that the person is engaged in criminal activity. In the context of a traffic stop, what this means is that after a law enforcement officer has completed their investigation into the traffic violation which caused the traffic stop, the motorist is free to leave unless the officer has reasonable suspicion to detain the motorist for the investigation of other criminal activity.

But what law enforcement officers would often do at the end of a traffic stop, was require the motorist to stay at the scene of the traffic stop in order for another office to arrive on the scene with a drug sniffing dog. Lacking reasonable suspicion to detain a motorist past the end of a traffic stop, but having a hunch the driver was trafficking drugs, the officer frequently asked the motorist if the motorist would mind sticking around until the officer was able to get a drug sniffing dog to the scene. When the motorist said now, the officer would still require the motorist sit there and wait for another officer to arrive with the dog for the sniff. Sometimes drugs were located, and the motorist would be arrested.

When the motorist would raise the issue of unreasonable detention for further investigation after the traffic stop was over, because there was no reasonable suspicion to detain the motorist, courts relied on a rule created by the courts known as the de minimus exception to the fourth amendment. The de minmimus exception held that even if the officer has no reasonable suspicion to detain the motorist, a short detention is such a small intrusion on the motorist’s time, that it is not an unreasonable detention.

This left prosecutors and defense attorneys arguing over what was de minimus and what was not. Was 8 minutes de minimus? How about 15? 4? The Rodriguez court intelligently drew a line in the sand, and extinguished the de minimus exception. There is no more de minimus exception.

Defendants are already using Rodriguez to challenge law enforcement actions. But trial courts are split on how to interpret Rodriguez. What remains to be seen is how far courts go in applying Rodriguez. Will courts start holding that even asking the motorist to wait around for the dog is an unreasonable detention, worthy of applying the exclusionary rule? What if the motorist consents to waiting around? Will that cure any illegal activity by law enforcement? That all is yet to be decided.

If you or someone you know is in trouble with the law, call the attorneys at the Berry Law Firm. We have over 100 combined years of representing defendants in criminal cases, and will aggressively fight for you, and your freedom.

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